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CAROLE F. ANZESE v. COMMONWEALTH PENNSYLVANIA (05/05/78)

decided: May 5, 1978.

CAROLE F. ANZESE, WIDOW OF JOHN ANZESE, DECEASED AND ALLEN A. PECHTER, ESQUIRE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND STRICK CORPORATION, RESPONDENTS. STRICK CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CAROLE F. ANZESE, WIDOW OF JOHN ANZESE, DECEASED, RESPONDENTS



Appeal from the Orders of the Workmen's Compensation Appeal Board in case of Carole F. Anzese, Widow of John Anzese, Deceased v. Strick Corporation, No. A-71436.

COUNSEL

Allen A. Pechter, for Carole F. Anzese and Allen A. Pechter.

David L. White, for Strick Corporation and Pa. Manufacturers' Association Insurance Company.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Mencer. Dissenting and Concurring Opinion by Judge DiSalle.

Author: Mencer

[ 35 Pa. Commw. Page 258]

Strick Corporation and its insurance carrier appeal from a decision of the Workmen's Compensation Appeal Board (Board) that John Anzese was killed in the course of his employment and that his widow, Carole F. Anzese, was therefore entitled to workmen's compensation benefits, including legal fees incurred in pursuing her claim. We reverse.

The facts in this matter are not in dispute. At approximately 3:20 p.m. on July 5, 1974, Anzese, an employee of Strick Corporation (employer), finished his day's work and punched out on the time clock. Anzese then proceeded to walk, in the midst of a severe thunderstorm, to his motorcycle parked in a lot provided by the employer. He started his motorcycle, drove it to an intersection in the lot, and paused to allow traffic to clear. At this point, while he was still on his employer's premises, he was struck and killed by a bolt of lightning.

Mrs. Anzese then filed a fatal claim petition pursuant to The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. A referee decided she was entitled to benefits, including legal fees incurred in pursuing her claim. On appeal, the Board agreed, and the employer's petition for review by this Court followed.*fn1

[ 35 Pa. Commw. Page 259]

A death or injury is compensable only if it arises "in the course of employment" within the meaning of Section 301(c)(1) of the Act, 77 P.S. § 411(1), which provides, inter alia, as follows:

The term 'injury arising in the course of his employment,' as used in this article . . . shall include all . . . injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer's business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer's business or affairs are being carried on, the employe's presence thereon being required by the nature of his employment. (Emphasis added.).

Discussing this section in North American Rockwell Corp. v. Workmen's Compensation Appeal Board, 21 Pa. Commonwealth Ct. 437, 440-41, 346 A.2d 379, 381-82 (1975), we stated:

The statute, as in effect now and prior to 1972, clearly provides for two distinct categories of injuries which may 'arise in the course of ...


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